Different Methods of Argument on Appeal

Coming now to a consideration of the several types of forensic persuasion, especially in the argument of an appeal, because every law student is more familiar with the work of our appellate courts from his study of reported cases than he is with any other phase of judicial activity. Even so, there is a world of difference between the student's view of an appeal and the advocate's. In your study of appellate decisions you have very largely the point of view of the appellate judge. Like the judge you are interested in ascertaining the right rule of law and the sound reason for it. The advocate, on the other hand, is bending all of his powers to persuade the appellate court to adopt a view of the facts or a rule of law favorable to his client, well knowing that his adversary will do likewise and that the judges are most likely to reach a sound conclusion if each of the rivals argues his case effectively.

The argument of an appeal is the climax of a case. All the long and wearisome work of interviewing clients and witnesses, of gathering facts, of assembling the law, of drafting the pleadings, of attending the various pretrial proceedings, the preparation of the trial briefs, the trial itself, possibly the argument of a rule to show cause why a new trial should not be granted, the preparation of the appellate briefs and of the entirely separate and distinct notes for the oral argument: all of these are to be distilled into an argument of a half an hour. It is the most concentrated and yet the most exhilarating work that the advocate is called upon to do. The trial court has had the advantage of hearing the opening and the summation of counsel, the presentation of evidence, the cross-examination of witnesses, the arguments on the admission of evidence, and perhaps a motion for a non-suit or a directed verdict. The trial court absorbs the content of a case bit by bit. The appellate tribunal, however, will know nothing of the facts, none too much of the law, and none of the background of your case save as it gleans them from the cold pages of the printed briefs or absorbs them from counsel at the oral argument. You face a select audience that is experienced, professionally critical but not unfriendly, keenly interested in knowing the facts and applying the law to them, and more or less prepared for the occasion. The challenge is great; the entire outcome of the case, victory or defeat, will be influenced by the effectiveness of your oral argument.


There are several different methods of argument on appeal, and a brief discussion of the several kinds will throw light on the entire process. In the English appellate courts, for example, the briefs are only two or three pages long; they merely show how the case came up and list the points to be argued, but without written argument or citation of cases. The argument is entirely oral and there is no time limit except as the judges think the subject has been exhausted. Therefore the judges do not hesitate to interrupt counsel as frequently as they need to, to get the facts and to express their views on the law, and counsel do not object to such interruptions. Indeed, they welcome them because they show what the judges are thinking and give counsel an opportunity to meet the views of the judge.

There are many appellate courts in which the appeals are assigned for the writing of decisions to the various justices in rotation in advance of hearing argument. Human nature being what it is, it inevitably follows that the judges who are not charged with the writing of an opinion in a particular case are not likely to take as great an interest in that case as they would if they thought they might be called on at the court conference to write the opinion. Judges in one great court have even been known to slip out for a cup of tea when a case was on in which they would not be primarily responsible for the opinion. This system, of course, is all wrong, but where it exists, counsel will do well to use all his ingenuity to ascertain who is the judge who has been assigned to write the opinion in his case. Sometimes the judge may be detected by his asking more questions than any of the others do. Generally his law secretary will be in evidence in the courtroom, busy taking notes. In such cases counsel will, of course, give the opinion-writer more than usual attention while not seeming to neglect the rest of the bench. Where this practice of "one-judge opinions" prevails, the bar should exert its influence to end it. Such opinions are inevitably inferior to those in which the entire court really participates.

An increasing number of courts follow the example of the United States Court of Appeals for the Fourth Circuit in reading the briefs in advance of argument. In the Supreme Court of New Jersey, not only do we read the briefs and as much of the record as may be necessary in advance, but each of us also prepares a typewritten summary of the points raised on the appeal and of our tentative views with respect thereto. We even go one step further; we tell counsel at the outset of the arguments the points in their briefs that we are most interested in hearing argued, but we leave it entirely to them to use their time as they see fit. The great advantage of reading the briefs first is that if there is anything in the briefs that is not clear, the judges have a chance to ask counsel about it when he reaches the point in his argument, whereas if briefs were not read until a later date that question must necessarily go unasked. There can be no doubt that any argument will be much more effective if the judges have read the briefs in advance, for in these days so great is the volume of decisions that no judge can be expected to, or does in fact, know all of the decisions of his own state. If the judges come to the oral argument fortified by a study of the briefs, the statements of counsel both as to the facts and the law have a force and a meaning they otherwise would lack. Counsel, too, have the satisfaction of knowing their briefs have been seriously studied at a time when the study will do the most good.

But whatever method of argument may be pursued in any given jurisdiction, there are four essential matters that need concern the advocate:

1. the statement of the question or questions to be argued,
2. the statement of facts,
3. the argument of law, and
4. the relation between counsel and the court, i.e., between the speaker and his audience.

The same four elements must be considered in preparing a brief, but the written brief, save in the rarest instances, cannot hope to move its readers. It achieves its objective if it convinces. The aim of the oral argument, however, is to persuade. The human presence and particularly the human voice can convey meanings and produce reactions, both favorable and unfavorable, far beyond the power of the printed page. More often than most counsel imagine, the oral argument may change a judge's mind, no matter how carefully he may have studied the briefs in advance.

There are several reasons for this: first, ideas are developed in the clash of oral argument that never appear on the printed pages of the brief; second, many judges by reason of their years of courtroom experience get more through the ear than they do through the eye; finally, the oral argument inevitably tends to develop far better than can any brief the case as a whole in a way that delights the mind of a judge who has an instinct for order and system.

Counsel should never read from his brief except perhaps the shortest ((notations from the most pertinent authorities. His arguments should be delivered seemingly extemporaneously, preferably with nothing intervening between the court and himself except a one-page outline of his argument, which he should keep before him so as to be sure not to skip any important point due to any interruptions from the bench. Next to reading from the printed brief itself there is nothing worse than reading ad infinitum from a sheaf of longhand notes, which gives evidence of having been prepared late the night before the argument or even on the train on the way to court. For the court the decision of an appeal is the most important type of judicial business. The judges realize they are making law. If they are worth their salt, they are putting all they have in experience, time, energy, and judgment into their work. They may never tell you so, but they cannot help but resent anything that is, or that seems to them to be, casual about your preparation for your part of the judicial function.

In most jurisdictions a succinct statement of the question or questions to be argued is the first element of a brief. This is to aid the court in reading the statement of facts that follows intelligently in the light of the issues. Yet many counsels vitiate this requirement by obscure and verbose statements of the questions to be argued. Why they do so is an unsolved problem of abnormal legal psychology. Even the judges who do not read the briefs in advance of argument are likely to glance first at the opinion of the court below and then at the statement of the questions in each brief while counsel is warming up. If the appellant's headings are not enlightening but the respondent's are, whose point of view, is likely to be uppermost in the minds of these judges as they listen to the argument?

In those jurisdictions where the judges do study the briefs in advance of the oral argument, many counsels seem to think that the court reads the appellant's brief through before turning to the respondent's. This assumes that the judges look on the briefs as literary efforts to be digested in their entirety, but ordinarily they do not have that point of view. They will read first of all the appellant's statement of the questions to be argued and then the respondent's. They do this because they want to see whether counsel agrees on the issues and if they disagree, in what respects.

After comparing the statements of the questions to be argued, the judges will next read the appellant's statement of facts, following that by a study of the respondent's statement of facts to see how far the parties agree on the facts and wherein they differ. If necessary, the judges will look up in the record the points of difference which they are referred to by appropriate citation of pages and lines in the brief. And may a kind fate help the lawyer who neglects to cite the appropriate spots in the record to justify his statement of facts, and vainly expects the court to analyze the whole record for him in a hunt for something that it was clearly his duty to point out to the court. Worse yet is it for counsel to give an incorrect citation, either by design or mistake. But the most unpardonable offense of" all is to cite a page and line of a record for a statement of fact made in the brief when no such fact appears on the cited page-when all that counsel really intended to do, or at least so he assures you at the oral argument, was to draw an inference from something that appears on the cited page without telling you that he is indulging in inference, or from what he is drawing the inference. Words of inference or reasoning are plentiful in the English language, and it is unforgiveable for counsel to draw inferences in his statement of facts without saying affirmatively that he is so doing and without telling the court from what facts he is drawing them. If counsel do not agree in their statement of the questions to be argued, the court's task in reading the statements of fact is more difficult than it would have been had they agreed, but still the judges can read each statement of fact with the differing views in mind as to the questions to be argued.

Next the court will read the appellant's argument of law one point at a time, then the respondent's response thereto, and then the appellant's reply, and come to a tentative opinion on each point. If counsel understood how briefs are read-indeed, if they understood the only intelligent way in which they can be read-the briefs and the oral argument would be far different from what many of them now are. It is surprising, too, how often even the most thoroughgoing study of the briefs fails to reveal some controlling point that will be developed for the first time on oral argument, driving the court back to a rereading of the brief after the oral argument and before the court conference at which a discussion of the case will take place.

In the written briefs the statement of the issues to be argued, as we have seen, comes first, but this is not necessarily so in the oral argument. If counsels are in agreement as to the questions to be argued, as is generally the case, a preliminary statement by the appellant of the questions will give point and direction to the subsequent statement of the essential facts. If, however, counsels have not agreed in their briefs on the questions to be submitted to the court for decision, counsel will do well ordinarily to state his facts first and then to pose the questions before plunging into his arguments of the law which he contends is raised by the facts. The ideal opening for an oral argument is a plain statement in a single sentence or two of how the case came to the court, its jurisdiction over the case, and what the question or questions are to be argued.